M.D. Krishna v. M.C. Padma

(1) In this appeal by the husband, we are only concerned with as to whether the direction of the court to the husband to pay Rs. 120/- per mensem towards the permanent alimony for his wife from the date of his filing the petition i.e. 1st September 1962, and the further directions to him to return the cash of Rs. 2,000/-, along with the silver articles and the furniture as noted at items Nos. 2 and 4 in Schedule A of I. A. II or its value of Rs. 2,000/- are proper. This order was made on I.A. II filed by the wife in the petition filed by the husband under section 13, Clause 8 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), seeking a decree of divorce.

(2) I.A. No. II was made under Ss. 25 and 27 of the Act seeking permanent alimony and maintenance of Rs. 150/- per month and also a direction in the decree with respect to the properties stated to have been presented to both husband and wife at the time of marriage and on subsequent occasions by parents and other relatives.

(3) As to the claim of maintenance, the learned trial Judge, on the evidence, made the order directing the husband to pay Rs. 120/- p.m. as maintenance to the wife. The question is whether this order is justified by the evidence on record.

(4) The wife, in support of her claim for maintenance, states that her husband besides owning a house and a car, gets a salary of Rs. 600/- per month. The husband states that he is getting a net amount of Rs. 444-81 p. as salary after necessary deductions. This evidence of the husband is supported by the certificate issued by the Principal of the B. M. S. College of Engineering where he is working as Assistant Professor. Ext. P-1 is that certificate; it shows what he has stated is true and correct. He admits that he has built a house costing about Rs. 15,000/- by taking a loan of Rs. 8,000/- and states that the car belongs to his brother.

(5) Under Section 25 of the Act, the Court has to determine the amount of maintenance to be paid to the wife having regard to the husband's own income and other property, if any, and the income and other property if possessed by the wife, and the conduct of the parties.

(6) It is in evidence that the wife at the relevant time was without any employment though she possesses which qualifications; and as to whether she possesses high qualifications; and as to whether she has other property, there is no evidence. The trial Court has awarded Rs. 120/- per month as maintenance to the wife, which amount is slightly more than one-fourth of the husband's income.

(7) In view of the evidence on record and having regard to the conduct of the husband who has been found to have ill-treated his wife, we feel satisfied that the order made by the trial Court awarding maintenance of Rs. 120/- per mensem is just and proper and does not call for interference by this Court. We accordingly confirm the said order.

(8) Then the learned trial Judge has directed the husband to return Rs. 2,000/- along with the silver articles and the furniture or its value of Rs. 2,000/-.

(9) Section 27 of the Act provides that,

"In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife."

So the matrimonial Court gets the jurisdiction to make suitable provisions in the decree which it may pass in the proceedings under the Act with respect to any property which is proved to have been presented at or about the time of marriage and which may being jointly to both the husband and the wife.

(10) In the petition presented by the wife she states that she is entitled to the return of all the article cash, furniture, silver vessels etc. given to her or to both i.e. to the husband and herself at the time of marriage and on subsequent occasions by parents and other relatives. In the Schedule-A to the petition she states:

"1. A sum of Rs. 2,000/- paid to the petitioner at the time of marriage;

2. Silver plate, chembu weighing 5 seers each, cups, tumblers, and other articles weighing about 10 seers in all worth 20 seers valued at Rs. 1,000/-.

3. Ring set with diamonds, valued at Rs. 500/-.

4. Furniture consisting of a Rosewood wardrobe fitted with full length mirror. 1 table 2 cots. 1 chest of drawers worth at least Rs. 1,000/-.

(11) The husband denied that any such articles were presented to them jointly; and states that the silver articles were taken away by his wife when she left his house, and therefore he is not liable to make any payment to the wife in respect of her claims. The trial Court did not allow wife's claim for Rs. 500/- towards the diamond ring stating that it was given to him exclusively. But, as to rest, it made an order directing the husband to pay a sum of Rs.4,000/- to the wife. The question is whether the trial was justified in making this order.

(12) The wife in her evidence states that her father gave Rs. 2,000/- in cash to her and to her husband jointly at the time of their marriage to set up a family and to meet the family needs; that they both received silver articles worth about Rupees 1,000/- weighing about 25 seers at the time of their marriage, and also received furniture worth about Rs. 1,000/-. She has given the details of the furniture given to them at the time of her marriage by her father. Her father in his evidence states that he gave silver vessels worth about Rs. 1,000/-, they are one silver chembu, one silver plate each weighing about 25 tolas and the other small silver articles weighting about 10 seers worth about the total value of Rs.1,000/-. He gave the details of the furniture and stated that its value is Rs.1,000/-. He further states that Rs. 2,000/- cash was also paid by him.

(13-14) Now, when we compare the evidence of the father with that of the wife, it would be seen that according to wife the weight of the silver articles presented at the time of marriage was 25 seers i.e. 600 tolas. Whereas according to father the weight of the articles presented would be about 290 tolas. Thus the wife seems to have exaggerated the weight of the silver articles presented to them at the time of her marriage. (After considering evidence regarding value of silver articles, the judgment proceeded:) In view of such discrepancy, we think Rs. 600 would be the reasonable value of the articles presented at the time of marriage. We also take it that these presents were made at or about the time of marriage jointly to the husband and wife.

(15) Now as regards the claim of Rs.2,000/- the wife says that Rs.2,000 were paid to the husband at the time of marriage to set up a family. In the petition she has stated that this amount was given to both of them to set up a family, yet in the Schedule A, it is stated that Rs. 2,000 was paid to the husband at the time of marriage. Her father does not specifically say as to whether this amount of Rs. 2,000 was paid to both of them for the purpose of establishing their family. All that he says is that Rs.2,000 were paid in cash though prior to it he says it was given to the couple at the time of the marriage. The evidence of the priest and the grandfather is not of much assistance in determining whether this amount was paid to the husband alone or paid jointly to the husband and wife.

(16) We are inclined to take the view from the evidence on record that this amount of Rs.2,000 must have been paid to the husband alone by way of "Varadhakshina' and not jointly to the husband and wife for their establishment in life as it is customary to make such present to the bride-groom at the time of marriage. Therefore, this claim of the wife must fail.

(17) As to the claim for the furniture, or its value, the wife and her father both state that the articles of furniture were presented at the time of marriage. The father had demanded the return of the articles by his letter dated 24-11-47, Ex. D-3 and he in the letter states that the articles mentioned therein i.e., silver articles and furniture were presented at the time of marriage and subsequently. Now which articles were presented at the time of marriage and which subsequent to it, is not made clear in the letter, yet in the evidence both of them say they were presented at the time of marriage is not supported either by priest or by the grand-father of the wife. They do not speak about any present of furniture made to the wife and the husband: the jurisdiction of the matrimonial court under Section 27 of the Act is only to make order with respect to property presented at or about the time of marriage and which belong jointly to both the husband and wife. So before an order is made under this section, it must be shown that the property in respect of which a claim is made was presented at or about the time of marriage; the matrimonial court would not get any jurisdiction to make order in respect of the property presented subsequent to the marriage.

(18) What is to be understood by the words "at or about the time of marriage"? The word 'at' must necessarily mean, the actual time of marriage, and the words 'about the time of marriage' mean near or round about the time of marriage, which may either be prior to or after, but it must be near or round about the time of marriage, and the presents covered by section 27 are the presents made at or about the time of marriage, and not the presents subsequently made. Care must be taken not to confuse presents made at or about the time of marriage with presents subsequently made. The line which divides them may at times be very thin; nevertheless the distinction is real and substantial, and if overlooked, will lead to the making of a wrong order. On the evidence, we are unable to say that the furniture was presented at or about the time of marriage. They must have been presented subsequent to the marriage appears to be clear from Exhibit D-3, a letter by the father in the year 1947. Therefore, the claim in respect of the furniture made by the wife must fail.

(19) Accordingly, we modify the order made by the trial Court and direct the husband to pay a sum of Rs. 600 only to the wife. With this modification the order made by the trial Court stands and the same is confirmed.

(20) Subject to the above modification, the appeal fails and the same is dismissed. No costs.

(21) Appeal dismissed